FLORIDA PROBATE LAW FIRM

Probate Attorney David Luber is the founder of a Florida Probate Law Firm helping probate Florida estates throughout Florida. 

His Florida Probate Law Firm can be contacted toll free at 866 561-1499 for any Florida Probate Law matter or he can be reached locally in Broward County Florida at 954 920-2886. 

FLORIDA PROBATE ATTORNEY David S. Luber, is located just south of Fort Lauderdale Florida in Hollywood. 

Florida Probate Attorney David S. Luber, LL.M. has a Master of Laws in Estate Planning and has been a Florida attorney since 1995. He is a past President of a Broward County Estate Planning Council and a the chair of the Broward County Florida Probate and Trust Section. Additionally he is a member of the Jewish Federation Professional Advisory Committee. He is a member of the Florida Bar and has been a member of the Florida Real Property Probate and Trust Section.

The Estate Planning Law Firm a probate law firm founded by Florida Probate Attorney David Luber helps to see that clients have assistance with probate law matters throughout Florida and its probate courts for Florida probate administration, estate settlement, and information about Florida Probate Litigation and Florida Will Contests.

Probate Attorney David Luber provides probate information about the following areas of law. 

Florida Probate Law

Florida Summary Probate 

Florida Ancillary Probate.

Florida Probate Litigation Information

Florida Probate Attorney and resources

He is accessible, understanding of the individual needs of each client and can help explain Florida Probate and Estate law.

FLORIDA PROBATE LAW

1. WHAT IS FLORIDA PROBATE? 

Florida Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate statutes provide for two types of probate administration:
A. Formal Probate Administration and 
B. Summary Probate Administration

Formal Probate Administration is the primary method used to probate estates in Boca Raton and throughout Florida. If the Florida decedent has died within the past two years and the decedents property remaining in their sole name has a value in excess of $75,000 or a will directs formal administration then a formal administration will typically be required. A personal representative is appointed based on who is named in the decedents valid will admitted to probate and whether that individual(s) qualifies to serve as personal representative or based on order of priority based on Florida intestate laws.

An individual personal representative must be a Florida resident or a close relative of the decedent as defined by Florida probate statutes to serve as personal representative of an estate. They also must be at least 18 years of age, not have been convicted of a felony and be of sound mind to act. Assuming these do not present a problem and there was a will the probate of which is not being contested or challenged the named personal representative will be appointed by the judge.

If there is no will the Florida intestate laws for the appointment of the personal representative provide that if there is a spouse they will have priority to serve as the personal representative. If there is no spouse then the nearest in degree such as a child or children will have the priority. Although multiple personal representatives may serve if one child is local and and another is in another state it may be make sense for the local personal representative to serve. Having a local personal representative serving may also prevent the estate from being required to have to obtain a personal representatives bond.

A Notice to Creditors must be published with a publication circulating in the county of the decedent once a week for two consecutive weeks. This provides notice to all unknown creditors and provides them with 3 months to submit statement of claims to the probate court or forever be barred while any creditors who are known or reasonably ascertainable creditors have the longer of 30 days from service to 3 months from the date of initial publication. If a statement of claim is submitted that the personal representative objects to they can investigate and inquire regarding the validity of the claimed debt and then either pay it, settle it for less then is being asked for or object to the statement of claim. They can object by filing a formal objection and serving the creditor. If this is done the creditor must follow up with an independent action enforcing the claim or the debt will likely not be valid any longer if not pursued in a timely manner. All such claims against the estate must be resolved through either payment, settlement or objection (and if the indepedent action is lost the estate must pay the claim according to the terms the court finds it to be owed).

The Personal Representative gathers and collects all the assets assets of the decedents estate. They must preserve and protect the assets of the estate. Taxes will need to be paid for the decedents final income tax return, a 1040 tax return, as well as possibly an estate or trust income tax return a 1041 tax return, and if the decedent had assets worth $3,500,000 as of 2009 regardless of whether they were in their probate estate then an estate tax return which is a 706 tax return would need to be filed. For 2010 there is no estate tax. 

Florida law also establishes a non administration proceeding called "Disposition of Personal Property Without Administration."

2. IS AN ATTORNEY / FLORIDA PROBATE LAW FIRM REQUIRED FOR ALL FLORIDA PROBATE ADMINISTRATION? 

Yes, Florida law almost always requires a Florida Probate Law Firm / attorney be involved. Florida law requires an attorney represent the Personal Representative/ Florida Probate Estate for all probate matters except the disposition of personal property without administration or when they are the sole interested party meaning that there are no creditors or other beneficiaries.  

The reason is that the Florida statutes many legal issues arise, even in the most basic estate administration and therefore the state by statute requires that a Florida Probate Law Firm / attorney be involved. 

The Florida Probate Law Firm / Florida attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative represents the estate and is not the Florida Probate Law Firm for the beneficiaries.

3. What are the assets of the estate that are subject to probate? What are examples of assets which are not probate assets?

The probate assets are those assets in the decedent's sole name at death. Assets that are owned so they will pass by operation of law such as joint tenants with right of survivorship or transfer on death accounts, or by contract such as insurance proceeds that pass a named beneficiary other then the estate are not probate assets. 

4. WHY IS PROBATE REQUIRED? 

Probate is needed to finish up the affairs of the decedent - Florida resident who died domiciled in Florida, or owning Florida real estate in their sole name with nobody else on the deed. The Florida Probate Law Firm and the personal representative or summary probate order properly retitle the assets to whom they should pass. For over 150 years there have been Florida Probate Laws in effect in the state. Florida statutes have default provisions also known as the intestate rules which apply if the decedent dies without leaving a valid will and has property in their sole name. The decedent has the authority to make decisions regarding their property that is in their sole name by leaving a valid will. (Except for homestead when leaving a surviving spouse or minor child or an elective share). 

5. WHAT ARE SOME WAYS TO AVOID PROBATE?

There are a number of ways to avoid Florida probate among the most common ways to avoid Florida probate are by having property funded in a revocable trust which passes the property to named beneficiaries, through transfer on death accounts which automatically pass upon the death of the account holder to their named beneficiaries or by contract such as an annuity, 401k plan or insurance policy. It should be kept in mind however that trust assets are subject to probate creditor claims and the only way to run the creditor period to shorten it from the otherwise 2 year period is to open up a probate estate. 

6. How should a life insurance policy be titled? Are there any ways to use life insurance to help save estate tax?

 An insurance policy should always name a beneficiary other then the estate in order to avoid probate. Insurance proceeds are not taxable from an income tax perspective when the beneficiaries receive them although they are generally included in the decedents estate to determine if the decedent owed any estate tax. Currently there is an unlimited marital deduction for federal estate tax purposes for 2010 decedents (although if passing to a spouse it may only be a deduction and deferral if proper tax planning is not done) the estate tax under current law is scheduled to return at an exemption amount of just $1 million dollars in 2011 although many anticipate it will instead be the $3.5 million dollar exemption amount that existed in 2009. if a decedent has property exceeding this amount it will likely be taxed at rates starting above 40%. If an irrevocable life insurance trust were to be setup so the decedent no longer had incidents of ownership of the property they could have the trust provide who the property would go to and still exempt the full amount of the insurance trust from any estate taxes. A half million dollar policy that would all otherwise be subjected to tax in an irrevocable life insurance trust can save a couple hundred thousand that would otherwise have to be paid in taxes thereby increasing the amount of property to be passed on to friends and loved ones. It does require annual notices to be given which are called Crummey rights that are sent out by the trustee though in order to avoid gift tax issues that would be caused from the irrevocable trust. With the trustee not the grantor or their wife can be additional annual fees and other than stopping paying the premiums is an irrevocable trust so there are some things consider prior to pursuing this route but with estate taxes starting in the mid 40% range it can save significant money when the ILIT or Irrevocable Life Insurance Trust is used properly.

10. WHERE ARE FLORIDA PROBATE PETITIONS AND ORDERS FILED? 

Florida Probate petitions and orders are filed with the Clerk of the Circuit Court, for the county where the decedent lived or owned real estate. In Broward County the Broward Probate court is located at 201 S.E. 6th Street, Fort Lauderdale, FL 33301 room #252. In Palm Beach County Florida the Southern district serves probate estates for Boca Raton Probate matters and their address is 200 W. Atlantic Blvd in Delray Beach.

A filing fee must be paid to the clerk to start the probate administration. The clerk assigns a file number (such as 10-0000) and maintains a docket sheet which lists all papers filed with the clerk for that probate administration. In the Broward County Probate Court and the Palm Beach County Probate Court the filing fee to start the probate administration is $401 for a formal administration and $346 for a summary administration. The probate courts charge a dollar per page and $2 for certified copies.

11. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION? 

A Circuit Court Judge presides over Florida probate proceedings for the county in which the decedent was domiciled. For example a Circuit Court Judge for the probate division of Broward County Probate Court supervises all probate matters for people who died domiciled in Broward (the Fort Lauderdale, Hollywood, Pembroke Pines, Coral Springs area) while a Circuit Court judge in Palm Beach County supervises the Palm Beach County Probate process for Boca Raton. Palm Beach County has a South Palm Beach Probate Court branch, a North Palm Beach Probate Court branch and a central Palm Beach probate branch again depending on the address of the decedent or where the property is located for Palm Beach probate estates.

The probate court  judge appoints the personal representative and signs Letters of Administration. Letters of Administration show the authority of the personal representative to act on behalf of the Florida probate or Florida Ancillary probate. In some other states such as New York they may often be referred to as Letters Testamentary but in Florida are known as Letters of Administration and are used only in Formal Probate cases in Florida. When necessary such as a Florida probate litigation, will challenge, dispute regarding property listed on the probate inventory or an uncontested matter heard ex parte with just the attorney representing the personal representative present the Judge holds hearings to resolve all questions raised during the hearings and the administration of the Florida probate estate and enters Florida probate orders which are written directions regarding what may be done during the probate estate administration and whether certain legal standards have been met or whether documents are authentic. There are typically no juries in a probate litigation or estate litigation case but if there were a trial the probate court judge would hear the case and decide. Generally most Florida probate disputes and will contests are settled though among opposing probate attorneys so there is no trial but the probate case is overseen by the circuit court judge who would determine the outcome of a trial. 

12 WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO? 

The personal representative is generally a person, but may also be a bank or trust company. The personal representative is appointed by the court to be in charge of the administration of the probate estate. 

The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:

Identify, gather, value and safeguard Florida probate assets.

Publish a notice to creditors in a local newspaper authorized to publish legal notices in that county. (Broward Daily Business review and Palm Beach Daily Business review frequently serve this publication requirement in South Florida counties). For a formal probate in Boca Raton a notice to creditors would be published once a week for two consecutive weeks in Palm Beach County to give notice to creditors who were unknown or not reasonably ascertainable and those who are known or reasonably ascertainable have the greater of 3 months after publication or 30 days from actual service of notice within the first two years of the date of death of the decedent. After two years the creditor period ends regardless of the facts of the case if someone has not already filed a claim.  

Conduct reasonable search to locate known or reasonably ascertainable creditors and serve them with notice as potential creditors and give them notice of the time in which they must file their statement of claim with the probate court.

They must also give notice of the administration of the Florida estate or obtain waivers from doing so from the surviving spouse if any and other beneficiaries or heirs and giving notice of requirements to file any objections relating to the estate.

Review any statement of claims that are filed and either pay legally enforceable claims, settle claims which may be in question or object to claims if not valid and require the claimant to bring an independent action or lawsuit to enforce. The PR will defend the estate from such suits and if appropriate hire an estate litigation attorney but if determined the estate owes the money to pay any such valid debts.

Hire appropriate professionals to assist with the Florida estate administration. Each estate will vary regarding what will be needed but other then the Florida Probate Law Firm and the Attorney acting on its behalf and advising the personal representative some professionals which may be needed to assist include appraisers, accountants, real estate agent and investment advisors.The personal representative is responsible for having the tax returns filed if required to be filed and paying any taxes which the estate owes or the decedent owed to the extent of the estate assets. Tax returns which frequently must be filed are the decedents final income tax return for the year of death - final 1040, the estate income tax return or 1040 and in the case when all of a decedents property exceeded $3,500,000 or more for 2008 or 2009 decedents an estate tax return also known as 706 estate tax return. In 2010 there is currently no estate tax as an unlimited exemption amount exists although currently the estate tax is scheduled to  return to just $1 million in 2011. It will likely be fixed at $3.5 million but the current law says $1 million. For 2010 there is not a full step up in basis but are special rules which apply and the personal representative should speak to their Certified Public Accountant to discuss the 2010 tax rules or the Florida Probate Law Firm who is advising them.  

If a spouse elects against a will or estate and files for an elective share this 30% amount must be paid to them absent a valid pre or post nuptial agreement. Also a court may allow an estate to pay up to $18,000 for a family allowance to a spouse and or minor children of the decedent. 

Once the property has been gathered, the creditors have been resolved and the creditor period has expired and taxes have been paid or money has been withheld to pay the taxes of the estate then the personal representative should distribute the assets to the estate beneficiaries and petition to close the estate. 

13. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE? 

If the decedent prepared a valid will the named personal representative nominated in the will has preference to serve as long as they are legally qualified to serve as the personal representative. 

If the decedent did not leave a valid will, the surviving spouse if any has preference, with the person selected by a majority in interest of the heirs having a secondary preference.

14. WHO CAN BE A PERSONAL REPRESENTATIVE? 
The personal representative could be an individual, bank, or trust company, subject to certain restrictions.

An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative if they are at least 18 years of age, have not been convicted of a felony and have not been declared lacking mental capacity. 

A Trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

15. IS A PROVISION IN A WILL NAMING A PARTICULAR ATTORNEY BINDING ON THE PERSONAL REPRESENTATIVE? 

No a statement in the will is just an expression of preference. The named personal representative may select whoever they want to help the estate in the Florida probate administration. Florida law explicitly does not require the attorney if any named in the will be chosen. The named personal representative should select someone they have confidence in being able to assist the estate and them in their capacity as personal representative and being in charge of settling the estate and someone they would like to work with during the Florida probate process.  The probate process for a formal probate will last at least 4-6 months and it is important that the personal representative feel comfortable with the attorney who assists them. Finding a probate attorney that is knowledgeable, accessible, experienced and helpful will make their role as the personal representative a lot easier to complete the estate administration. 

16 ARE THERE ANY RESTRICTIONS ON THE FREEDOM OF THE TESTATOR TO PASS ON THEIR PROPERTY HOWEVER THEY CHOOSE TO DO SO?

Yes. As a matter of public policy Florida law has restrictions on the decedents absolute right to transfer their property. Unless there is a pre or post nuptial agreement a surviving spouse has both homestead rights and a right to an elective share. If the decedent is survived by a spouse the spouse regardless of how they attempted to transfer their primary residence which was homestead reality a life estate would pass to the spouse with the remainder going to the children. The one exception being that if there are no minor children and the decedent specifically gives the spouse an outright distribution of the property. If there are minor children but no spouse the decedent is also not able to pass on the property but it will go to the minor children. 

If a husband and wife own their Florida homestead as tenants by the entireties that is not homestead property. It would pass with right of survivorship to the spouse.    

If the surviving spouse is was given less then 30% of the decedents elective estate (essentially being the full value of property the decedent owned whether or not it was subject to probate) they may choose to exercise elective share rights and take 30% of the value of the decedents property. The elective share was significantly revised in October of 2001. The old law provided that the property which was computed in determining the elective share was merely the probate estate so through putting property in trust or owning property with right of survivorship the elective share could be eliminated. The legislature felt that defeated the intent of the elective share law and therefore expanded the scope so it could not be easily avoided like probate can. 

The spouse and minor or dependent children may also be entitled to receive up to a total of $18,000 for a family allowance to sustain them during the administration of the estate.

Also if a testator prepares a will then gets married subsequently and fails to revise their will or prepare a codicil and remains married to the spouse at their passing the surviving spouse would be what is called a pre termitted spouse. This means that they are entitled to a full share as a spouse as if the property passed by intestacy. This would allow the spouse to receive at least 50% of the property if their was a child of the decedent who was not also her child or 50% plus $60,000 if there were children who were all her children as well. If there were a spouse but no children in this circumstance the spouse would receive 100% of the property as a pretermitted spouse. If children are born after the preparation of a will and no codicil is prepared likewise the children are entitled to their share they would have received according to intestacy laws. They receive that property because of the application of the pre termitted children rule. 

17 ARE NO CONTEST CLAUSES IN WILLS ENFORCEABLE?

No Florida law provides that a testator may not provide that a beneficiary loses their share of the property that was provided for them if they contest the will. The Florida will contest will have no bearing on their right to what had been left for them. Florida statute 732.517 provides that any such provision which tries to penalize anyone from bringing a Florida Probate Litigation case and challenge what they are to receive is unenforceable. A Florida no contest clause is merely a statement of intent and may be nice for the beneficiaries to respect but Florida statutes provide that no contest clauses are not enforceable for Florida estates. Since this law presumes it would not be good policy to punish people for pursuing their rights to Florida Probate property and preventing them from pursuing their rightful inheritance Florida will contests are allowed with no penalties for seeking to obtain what one should receive. A Florida will contest attorney can therefore be retained and pursue probate litigation on an heir or beneficiaries behalf without them being concerned that they will lose what they currently are entitled to as a result of challenging the validity of the will in probate court. Florida Estate Litigation Attorneys can help to provide justice and set things right as sometimes there are valid and legally recognized reasons to dispute and contest the will admitted to Florida probate court.   

18 CAN A WILL BE CONTESTED AND WHAT ARE COMMON REASONS FOR CONTESTING A FLORIDA WILL?

Yes a Florida will can be contested through Florida Probate Litigation. Some common reasons to contest would be if a beneficiary or heir felt that the testator lacked testamentary capacity at the time the will was executed.  If someone is unable to recall the names of their spouse or children, does not know whether they are worth $1 or $1 billion or what state they are in would all pose significant questions of lack of testamentary capacity. Someone may have capacity at one moment but not at others if someone is ill and on a lot of medication this may impair their capacity. The execution of the document is the time that is assessed. Testamentary capacity is a low standard that is usually met although there are some circumstances which could lead to successful challenges due to the lack of testamentary capacity or diminished capacity from a Florida testator. The facts of each case may vary and it is advisable to discuss a particular situation with a Florida Probate Law Firm for anyone who believes they should have been provided for but for a lack of capacity or another reason to contest or dispute the will in Florida Probate Court.

Undue influence is also reason for challenging a Florida will and retaining a probate litigation attorney. People sometimes exert undue influence to obtain gifts from Florida testators who are elderly, sick, or weak. To be considered undue influence, a person's mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the influences of persons in close confidential relations with him or her, that he or she is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another. Undue influence is one of the more common reasons to contest a Florida will. Through proving the elements of undue influence mentioned above along with a beneficial result a Florida will contest attorney or Florida Will Contest lawyer can prove to the probate court during the will contest and probate litigation and have the probate court set aside the portion of the will that was impacted by the undue influence. A will contest can re establish the heir or beneficiaries inheritance rights.   

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons Florida Statute 732.5165.  No action to contest the validity of a will may be taken prior to the death of the decedent as the will has no force or effect until the death of the testator. Florida wills statute 732.518 mentions this that a will cannot be challenged prior to the death of the decedent.

Unfortunately it is necessary at times to dispute a will and contest the wills provisions based on one of the reasons mentioned above or some other legal rational. An experience probate litigation attorney who understands the basis for undue influence, diminished capacity and the other reasons for challenging a will and can provide aggressive representation to ensure that your rights are maintained can be very useful to give piece of mind that a person gets what they are entitled to. Losing a friend or loved one is a sad enough time and should not be compounded by the thought that one is losing property rights they were legally entitled to.  A Florida Probate Law Firm can help discuss whether you have a valid case and whether it makes sense to pursue a will contest or Florida Estate Litigation action.

18  WHAT IF A TESTATOR DOMICILED IN FLORIDA OWNS REAL ESTATE IN OTHER STATES IS THAT CONTROLLED BY A FLORIDA PROBATE COURT? 
No if a Florida testator owns a home, condo, or land in another jurisdiction in their sole name that other state would need to have an ancillary administration. Therefore if for example a Florida decedent also had a home in Southern California, a piece of vacant land in Chicago Illinois, a condo in Philadelphia Pennsylvania, and a commercial building in Manhattan, New York.  Then an ancillary probate administration would be needed in the Los Angeles Superior Probate Court, or whatever South California county the home was located in, an ancillary administration for the estate administration of the Cook County piece of land in Chicago would be needed, as well as an ancillary administration required for the Philadelphia Pennsylvania condo and an additional ancillary administration for the probate in New York would required. Each Ancillary proceeding would need an attorney licensed in that state and would have a different probate judge overseeing the matter. This would be a situation where a trust could be used to significantly minimize or possibly eliminate the need for a probate. However property in a trust in Florida is subject to the creditors of the estate for the first two years after the decedent has died unless notice to creditors is published. If there is nothing owed on the mortgage so the due on sale clause could not potentially be called in and the property is to pass to adults equally and outright at death the best option if available is likely to pass through an enhanced life estate or lady bird deed. In 2011 and most years it allows for step of in tax basis to the date of death, the grantor to remain complete ownership but the property to entirely avoid probate and pass immediately to the beneficiaries upon the death of the decedent. Only certain states have this type of a deed and it goes by different names in California it is a transfer on death deed and in Florida ladybird or enhanced life estate.

19  CAN A PERSONAL REPRESENTATIVE RECEIVE A FEE FOR SERVING? CAN TAXES IMPACT THE DECISION OF WHETHER TO DO SO?

Yes a personal representative in a Florida estate may receive a fee. There is a presumed reasonable fee of 3% of the probate estate for serving as a personal representative for the first million of the estate then a sliding scale. Florida statute 733.617 provides the specifics. If the personal representative were the only beneficiary and would otherwise be receiving the property through inheritance it would not be a good idea though for them to take a few unless it was a taxable estate for estate tax purposes. This is because the amount received as a personal representative's fee is taxable income for services rendered and is included in their income at their ordinary income rate. If they receive it as an inheritance it will likely not be taxable. Only the increase in value subsequent to the date of death of decedent would be subject to income tax. The income tax rate will always be lower then the estate tax rate though and the amount paid to the personal representative is a deduction on the estate tax return so if the estate is taxable on an estate tax return (form 706) because the decedent owned $3,500,000 or more in property as of 2009 then it would make sense from a tax perspective to take a fee. In 2010 however there is no estate tax. One other situation could make sense for taking a fee is a very small estate with limited non exempt assets but with some creditors. The Attorney fee and the personal representative fee are costs of administration and a class 1 priority while a typical debt such as a credit card has a much lower priority so if there is not enough money to pay a reasonable attorney fee and personal representative fee could make sense instead of having it go to the creditor who was likely to file a claim or had done so.

20  DOES DIVORCE IMPACT PROVISIONS IN A FLORIDA WILL?

Yes any provisions made for the benefit of an ex spouse in most cases will not longer be enforceable. Florida Wills statute 732.507 provides any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise. It is important though that life insurance policies and other contractual arrangements which pass outside of the will or trust are reviewed after divorce as those are not impacted by the Florida statute which would void provisions to the ex spouse in the will or trust absent a clear intent to the contrary but would still provide for them unless expressly changed or provided for in the divorce decree.

21. DOES AN ELECTIVE SHARE APPLY TO ANCILLARY FLORIDA PROBATE CASES?

No. In order to be entitled to an elective share in Florida the person must be the surviving spouse of a person who died domiciled in Florida.  Florida statute 732.201 provides this is who is entitled to an elective share assuming there was no valid pre or post nup agreement.  

22. MAY AN INTERESTED PERSON SERVE AS A WITNESS FOR A WILL? SHOULD THEY?

Yes in Florida statute 732.504 allows them to do so and says that the will is not invalid as a result of them serving. However, it is not a good idea to have an interested person serve as a witness if it can be avoided since the will may be admitted to probate in a different jurisdiction where the person may move and that state might have different laws. In some states they may only receive up to their intestate share or it may be a problem. Also if there is an uneven distribution and the person who received greater than their normal share it could raise questions showing that the person who received more than the typical share was at the execution of the documents which could cause further inquiry regarding whether undue influence was present in the situation. Merely signing the will would be legally fine and would not cause a problem but it is better to have independent witnesses for a variety of reasons.

23. IF A NEW WILL IS DONE DOES THAT AUTOMATICALLY REVOKE THE PRIOR WILL?

No. A properly executed will would revoke a prior will to the extent that it either said it revoked it or to the extent that it had inconsistent terms as prior one but revocation by writing does not occur to portions of the will which are not specifically revoked or specifically inconsistent with the prior one such as the new will naming a different beneficiary for the same property or a different personal representative. When intending to do a new will the will should always specifically revoke the prior one in order to avoid any potential confusion or for a codicil specifically state what is being revoked or changed.

24  DOES THE FLORIDA PROBATE LAW FIRM who wrote this website offer free initial phone consultations regarding Florida probate law case they are likely going to hire a Florida Probate Law Firm to assist with?

Yes. A free initial phone consultation is available and you can speak directly with an an attorney. Locally in the Hollywood / Fort Lauderdale area at 954 920-2886 or the Boca Raton number at 561 948-8205 or toll free for Florida Probate Law at 866 561-1499.

Florida has 67 Counties and its probate courts are part of the circuit court which serves the county in which the decedent died or owned real estate. A Florida Probate Law Firm can assist with probate cases throughout Florida. Some of the cities and counties throughout Florida are listed below.